BRIEF SUMMARY:House Bill 4486 would amend the Michigan
Penal Code to create enhanced penalties for second-, third-, or fourth-degree
child abuse when the individual convicted of that crime has a prior conviction
for child abuse in any degree. House Bill 4487 would place the new
penalties within the sentencing guidelines. The bills would take effect 90 days
after enactment.

FISCAL IMPACT:House Bill 4486 would have an indeterminate fiscal impact on
state and local units of government (see Fiscal Information, below,
for a more detailed discussion).

THE APPARENT PROBLEM:

Currently, except for repeat second-degree child abuse
violations, no matter how many times the same person commits an act
constituting child abuse, the same penalty applies. Some feel, however, that if
a person commits a second act, or a third, or more, the subsequent convictions
should carry a higher penalty. One incident, they reason, may be an unfortunate
mistake or may lead to a person’s getting help for a problem that played a part
in the wrongdoing. But when the same person either deliberately hurts a child
again or continues to engage in conduct that puts a child at risk of harm, he
or she should face a harsher criminal sentence.

THE CONTENT OF THE BILL:

Under current law, a person is guilty of second-degree
child abuse if the person’s omission or reckless act causes serious
physical or mental harm to a child; if the person knowingly or intentionally
commits an act that is cruel to a child or that is likely to cause serious
physical or mental harm to a child, regardless of whether harm results; or if
the person intentionally violates a licensing rule for family and group child
care homes under Public Act 116 of 1973 and the violation causes the death of a
child. A violation is a felony punishable by up to 10 years’ imprisonment for a
first offense and up to 20 years’ imprisonment for a second or subsequent offense.

A person is guilty of third-degree child abuse if
the person knowingly or intentionally causes physical harm to a child or
knowingly or intentionally commits an act that poses an unreasonable risk of
harm or injury to a child and that results in physical harm to a child. A
violation is a felony punishable by up to 2 years’ imprisonment.

A person is guilty of fourth-degree child abuse
if the person’s omission or reckless act causes physical harm to a child or
the person knowingly or intentionally commits an act that poses an unreasonable
risk of harm or injury to a child, regardless of whether physical harm results.
A violation is a misdemeanor punishable by up to 1 year’s imprisonment.

House Bill 4486
would increase the sentence that can be imposed for second-, third-, or
fourth-degree child abuse if the person convicted for that crime has a prior
conviction. Under the bill, “prior conviction” would mean a violation of the
child abuse law (i.e., child abuse in any degree) or violation of a law
of another state that substantially corresponds to the child abuse law. (The
penalty for first-degree child abuse is not increased for repeat offenders
under the bill because it is currently life or any term of years.)

Under the bill, second-degree child abuse with a prior
conviction for child abuse in any degree would be a felony punishable by
imprisonment for up to 20 years; third-degree child abuse with a prior
conviction would be a felony punishable by imprisonment for up to 5 years; and
fourth-degree child abuse with a prior conviction would be a felony punishable
by imprisonment for up to 2 years. The bill would not change the penalty for a
first violation of any of these crimes.

The bill would require a prosecutor seeking an
enhanced sentence for a defendant who has 1 or more prior convictions to include
on the complaint and information a statement listing the prior conviction or
convictions. The court would determine, without a jury, the existence of the
defendant’s prior conviction or convictions either at sentencing or at a
separate hearing before sentencing. The court would base its determination on
any relevant evidence, which could include a copy of the judgment of conviction;
a transcript of a prior trial, plea-taking, or sentencing; information
contained in a presentence report; or the defendant’s statement.

MCL 750.136b

House Bill 4487
would place the new felony penalties for third- and fourth-degree child abuse
with a prior conviction within the sentencing guidelines portion of the Code of
Criminal Procedure. The bill also specifies that the current penalty for repeat
second-degree child abuse offenses would apply to second-degree child abuse
with any prior conviction, and that the current penalty for third-degree child
abuse would apply only to a first offense.

HB 4487 is tie-barred to House Bill 4486, meaning that
it cannot take effect unless House Bill 4486 is also enacted.

MCL 777.16g

FISCAL INFORMATION:

House Bill 4486
would have an indeterminate fiscal impact on state and local correctional
systems and on local courts. The number of people who would be convicted under
provisions of the bill is unknown. The bill would likely decrease misdemeanor
convictions and increase felony convictions as violations of fourth-degree
child abuse shift from misdemeanors to felonies when there is a prior
conviction. The bill could also result in increased sentences for second-degree
and third-degree child abuse with a prior conviction.

Felony convictions would result in increased costs
related to state prisons and state probation supervision. In fiscal year 2016,
the average cost of prison incarceration in a state facility was roughly
$36,000 per prisoner, a figure that includes various fixed administrative and
operational costs. State costs for parole and felony probation supervision
averaged about $3,500 per supervised offender in the same year.

By comparison, misdemeanor convictions increase costs
related to county jails and/or local misdemeanor probation supervision. The
costs of local incarceration in a county jail and local misdemeanor probation
supervision vary by jurisdiction. The fiscal impact on local courts would
depend on how provisions of the bill affected caseloads and related
administrative costs.

House Bill 4487
amends sentencing guidelines and would not have a direct fiscal impact on the
state or on local units of government.

ARGUMENTS:

For:

Sometimes a person does a bad thing only once. Through
counseling, education, maturity, or even serving a criminal penalty, many are
rehabilitated and never do that or any other bad thing again. For some crimes,
especially ones that result or could result in serious injury to another
person, a more stringent penalty for repeat offenses can distinguish between
someone who made a mistake and someone who poses an ongoing danger to others. Some
feel that the criminal penalty should be harsher for a person who commits child
abuse after being convicted of the crime previously. House Bill 4486 would do
just that. A prosecutor would still retain discretion over which charges to
bring and judges, under the guidance of the sentencing guidelines, would retain
discretion over an appropriate sentence.

Against:

No arguments were offered in opposition to the bill.

POSITIONS:

The Prosecuting Attorneys Association of Michigan
(PAAM) indicated support for the bills on 10-24-17 and 10-31-17.

Legislative
Analysts: Rick Yuille

Susan Stutzky

Fiscal
Analyst: Robin Risko

■
This analysis was prepared by nonpartisan House Fiscal Agency staff for use by
House members in their deliberations, and does not constitute an official
statement of legislative intent.